Regardless of whether you go with the noticed motion procedure or the alternative writ procedure, when initiating a writ proceeding in superior court you start with a writ petition. Here’s how you draft one.
- Follow the general format rules. Writ petitions must comply with the rules of court generally governing the format of papers presented for filing (see Cal Rules of Ct 2.10, 2.100–2.119) as well as the rules specifically governing the format of motion papers (see Cal Rules of Ct 3.1110–3.1116). These include the rules on, e.g., the type and size of papers, margins, and exhibits.
- Properly designate the parties. The party instituting a civil writ proceeding typically is called the petitioner, and the entity, official, or employee whose action or decision is being challenged in the writ proceeding is the respondent. A “real party in interest” is any entity or person whose interest will be directly affected by the outcome of the writ proceeding. There may not be a real party in interest, but when there is one, it must be named in the petition, is entitled to notice, and has a right to be heard. CCP §389.
- Ask for the right writ. Ask for the correct type of writ, e.g., a traditional writ of mandate, or a writ of administrative mandamus. It may be unclear in some cases which writ is appropriate, making it common to seek alternative forms of relief—e.g., a peremptory writ of mandate under CCP §1085 or §1094.5, or a peremptory writ of mandate or prohibition. Although most courts won’t deny relief because the petitioner asks for the wrong writ, a sloppy and inartful pleading doesn’t make a favorable first impression.
- State your request clearly. The petition includes the following parts:
- Opening paragraph. The petition’s opening paragraph should succinctly state the type of writ being sought and why writ relief is proper (e.g., no other adequate legal remedy) and necessary (e.g., the respondent has failed to perform an act required by law). Also note any stay request in the opening paragraph.
- Enumerated allegations. The heart of the petition consists of a series of enumerated factual allegations that tell the court all the information it needs to make a decision in the case, i.e., who the parties are, the factual background and procedural history, the challenged action or decision, and the basis for challenging it. The allegations identifying the basis for relief are the crux of the writ petition. If requesting a stay, allege the facts supporting a stay in the enumerated paragraphs of the petition.
- Statement of lack of adequate legal remedy. Mandate and prohibition will issue only when the petitioner has no plain, speedy, and adequate remedy at law. CCP §§1086, 1103(a). This allegation is usually one of the last allegations in the petition. Petitioners must be specific in explaining why there’s no adequate remedy at law and what specific harm will result if writ relief is denied. An aspect of the requirement that the petitioner have no adequate legal remedy is that the petitioner must state that it has exhausted all available administrative remedies.
- Prayer for relief. After the allegations and before the verification, specify all types of relief sought, including any damages. When a stay is requested, mention it first.
- Attorney signature and verification. The petition should end with space for both the attorney’s signature in the regular signature block and the petitioner’s verification. CCP §§1069, 1086, 1103(a). A petition for extraordinary relief must be verified (CCP §§1069, 1086, 1103(a)) just as an ordinary civil complaint (CCP §§446, 1109). Use either a declaration under penalty of perjury or an affidavit. CCP §§2009, 2015.5.
- Exhibits. If the record supporting the writ petition is only a few pages long, it may be attached to the writ petition as an exhibit. But generally an administrative record (if there is one) will be lodged separately, as will any supporting declarations and exhibits. Unless otherwise provided by law or ordered by the court, omit or redact Social Security numbers and financial account numbers from all pleadings and other papers filed in the court’s public file. If either of these numbers is required, only use the last four digits. Cal Rules of Ct 1.201(a).
Get more detail on superior court writ petitions, including sample language, in CEB’s California Civil Writ Practice, chap 5. This chapter also covers how to file and serve the petition.
Other CEBblog™ articles you may find useful:
- 12 Tips for Writing an Effective Appellate Brief
- How to Write Effectively
- 5 Things to Know Before You Handle an Administrative Action
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